Truthful, Science-Backed Food Claim Could Put You in Prison for 10 Years: Bill Passed by US House of Reps

Heidi Stevenson—09/2010
Under a bill passed by the US House of Representatives, you could be imprisoned for ten years for simply stating a food's potential to prevent or treat disease. At this point, the only thing standing between you and this law's enactment is the US Senate. This may be your last chance to save your right to free speech and healthy food.

[This article was originally published on Gaia Health.]

TIME IS SHORT, as there is a strong push in the Senate to pass this bill before the current session ends on October 7th. If passed, the Food and Drug Administration (FDA) will be granted unprecedented power to control the food supply, drive small producers out of business, and destroy the right of free speech.

In the wake of widespread contamination of the nation's food supply — all of which can be attributed directly to Agribusiness practices — the overreaching and rights-destroying bill was introduced by John Dingell, though Henry Waxman is generally believed to be the driving force behind it. The House has passed this bill. Now, Senator Patrick Leahy is pushing it heavily in the version he introduced, known as the Food Safety Accountability Act of 2010, S.3767.

The Bill's Provisions

As is so often the case with laws enacted by Congress, the devil is in the poorly defined details. In this case, much of the terminology appears to be innocuous. In practice, the terms have already been demonstrated to have far-reaching and potentially devastating effects.

Terminology

The key terms to understand are misbranding, contamination, and adulteration. They are not defined in the bills, but the FDA has defined them, and their history of using these definitions is already accepted and clear.

Misbranding, to the FDA, means anything on a product label. The FDA has presumed the right to determine whether a product has been misbranded. In practice, it means that any claim the FDA disagrees with is misbranding.

The bill defines Contamination as Adulteration. The FDA considers minor and unintended technical, clerical, and administrative errors to be adulteration, even when they're innocuous.

As enacted by the House, and proposed by the Senate, minor errors that the FDA defines as adulteration or any label claims that the FDA decides are misbranding can be punished by ten years in prison and $100,000 for an individual, and $7.5 million for a corporation, regardless of its size.


With the FDA's heavy-handed actions towards people who distribute raw milk and SWAT team operations taken against health food stores, the extra powers granted by these bills will turn an already overly powerful agency into the equivalent of the thought police.

Consider, for example, the FDA's action against Diamond Foods for the science-backed claim that walnuts have health benefits for the heart.(1) Under the House-passed bill and the Senate bill under consideration, this "misbranding" could be punished by ten years in prison and a fine of up to $100,000 for an individual or $7.5 million for a corporation of any size.

As the Alliance for Natural Health aptly put it:

In FDA-speak, however, these words take on completely different meanings. For example, a food or supplement may be "adulterated" if some vague FDA rule is deemed by the FDA not to have been followed. "Misbranded" can mean that the producer makes a completely true statement about the product but without FDA permission.(2)

Vagueness

The bills are vaguely worded. One must wonder if that's intentional. Interpretation will be made by the FDA, an agency that has already shown its desire to take power for itself. This will be a license for the FDA to twist the wording of the legislation in its ever-increasing role as the protector of Agribusiness and Big Pharma.

Supplements

Supplements are specifically named as coming under the FDA's jurisdiction. The FDA will be able to parse the wording on supplement labels in whatever manner they desire to define them as misbranded. Their rules are often difficult to follow, often written in a manner that seems intentionally vague. This can leave their meaning open to interpretation, often making it impossible to know whether a rule has been broken — until the FDA decides it has.

Large corporations already seem to be running the FDA, as can be witnessed by lifelong Monsanto promoter, Michael R. Taylor, who is now the Deputy Commissioner for Foods. Large multinational corporations are unlikely to feel the effects, but even when they are, $7.5 million isn't particularly meaningful for them — simply a cost of doing business. But for a small company, the sort that provides high quality supplements made from natural and organic ingredients, such a fine would likely put them out of business.

Farming and Farming Practices

The FDA, which isn't supposed to have any control over farming, is being granted draconian authority over agriculture. The agency will have complete authority to define standards for fertilizers, harvesting and processing methods, and transportation. Any variation from the standards set by the FDA could result in fines of $100,000 for an individual, $7.5 million for a corporation, or imprisonment for 10 years.

This could give the FDA the ability to simply ban all raw milk distribution, without exception.

The wording of the bill doesn't distinguish among different types of farming. Thus, at the FDA's sole discretion, rules for all operation sizes, from massive factory farms down to the tiniest producer, or battery egg-laying operations down to the tiniest backyard operation that sells its excess eggs — all could be treated the same.

Size Doesn't Matter

Any food facility — defined as any operation dealing with food other than farms and restaurants, including factories, processors, packers, and storers — must pay an anuual $500 registration fee. For large operations, this is a nit, but for small ones and many startups, it's onerous. Producers of fermented vegetables, which are usually quite small, will often find it difficult to operate. $500 for Sara Lee is virtually meaningless, but for the little guy, it can easily be the difference between survival and failure.

Abrogation of the Fourth Amendment's Limitations of Search and Seizure

In Orwellian style, the FDA will be granted the ability to perform searches and seizures without warrants. All records of any food-related or supplement-related business can be searched at will. They won't even need to have a trumped-up claim that a product is adulterated under these elastic standards. They'll be granted the ability to conduct warrantless searches at any time for any reason, including just because they feel like it.

The FDA will have absolute control over recalls, searches, seizures, quarantines, and detentions. They will not need to go before a judge to demonstrate cause for a warrant. Any food product can be held on nothing more than their say-so. If — when — the FDA wants to destroy small businesses at the behest of its Big Pharma and Agribusiness masters, all it needs to do is launch an inquisition of the small competitors.

The Little Guy

Poor Max Kane!(2) He's the fellow who has risked prison by refusing to tell authorities who purchases raw milk. This law will make his sacrifice irrelevant: the FDA will simply take whatever records it can find. It will have the ability to jail him for ten years. He ran a raw milk distribution cooperative, which the FDA will be able to declare illegal — and there will be no recourse for either Max or anyone else who chooses to purchase raw milk… or vitamins or herbs or anything else that the FDA's masters want destroyed.

What You Can do

We each have different ways of dealing with the abrogation of our rights — but at this point, apathy is not an acceptable response. If you care, then you must act. There are many ways to respond, but notifying your representatives in national government of your disquiet is the minimum response.

If you care, then you need to send an e-mail or letter to your Senator. These men and women are your representatives. In all likelihood, most will follow the money — unless they've convinced that they'll lose the next election by voting against the desires of their constituents.

The only hope of stopping the travesty of Senate Bill 3767 is by convincing our Senators that they won't be reelected if they vote for it. That can be accomplished only in numbers — and you personally are one of those numbers. If you care, please send an e-mail or letter (letter is preferable) to your senator saying what your think. Don't worry if the grammar is good. Remember: Each letter is a vote, no matter what the grammar. Just make sure that your opinion is clear.

How Your Representative in the House Voted

You can find out how your personal Representative in the House voted by going to this page. Then, if your rep voted against it, consider sending a letter or e-mail saying thanks. If your rep voted for it, consider sending a message saying what you think about it — and consider suggesting that you won't be voting for him or her because your interests are not represented by tossing your rights out the window.

Notice that each Representative's name on this page is a link. Clicking it will take you to info about the rep, including a link to the website. There, you'll find out how to send an e-mail or letter.

Granted, it's too late to change how Representatives have voted, but perhaps they'll reconsider if they find that enough of their constituents are angry about the loss of their rights. If you don't let them know, then you can expect them to continue voting according to who gives them the most money.

Writing to Your Senator

The Alliance for Natural Health has a page for contacting your Senators and sending a message. It includes a prewritten letter, but you can write your own — and it's best that you do, as they are taken more seriously than duplicates. Once you click on "Send Message", your comments will be sent to both of your Senators. Click here to send your Senators a message telling them what you think about the Food Safety Accountability Act of 2010.

Don't Be a Self-Fulfilling Prophecy of Hopelessness

There is only one completely unacceptable response to this issue, and that is to be apathetic. Anyone who says, "Well, what can one do?" is part of the problem — a self-fulfilling prophecy. If you care about your rights and your health, then you must take action. Let your Congress members know exactly what you think. If you don't, then expect to lose your rights. If you do, then you're part of the solution. Then, once you've sent an e-mail or letter, tell everyone you know that they need to do the same thing.

As Benjamin Franklin said, "We must all hang together, or assuredly we shall all hang separately." Those words are truer now than they've been since the nation's founding. If we don't get together and act, then our rights to free speech and self-determination in our food and health will soon be gone.